EXHIBITS: ADMISSION OF “REAL” OR PHYSICAL EVIDENCE
Hon. Robert Trentacosta
The actual objects that are factually relevant to a case are called “real” or “physical” evidence. Examples include: the gun or knife used in the crime; the stolen jewelry; torn clothing, the shredded tire, the defective power saw, a fingerprint, or the fractured wine bottle. Admission of the actual objects relevant to your case can be powerful and persuasive evidence for the jurors as “seeing is believing.”
“Real/Physical” exhibits are distinguishable from “demonstrative” exhibits and a different foundation for real/physical exhibits is necessary for admission. Demonstrative exhibits include: photographs, diagrams, drawings, maps or charts. These exhibits are not the actual item, but rather a representation to aid in the jurors’ understanding. (See, Exhibits: Admission of Demonstrative Evidence on this website for further analysis). Both “real” and “demonstrative” evidence can be used to prove your case. They are routinely paired to bolster your trial presentation.
Real/Physical Evidence is Impactful to a Jury:
Real/Physical exhibits get the jurors’ attention and enhance the oral testimony of the witnesses. When the jurors can physically see the real exhibit, the testimony of the witness becomes clearer, more relevant and definitely more interesting. Real exhibits are often deemed by the jurors to be the most important evidence as it is the actual “thing” the trial is all about.
In addition to imparting information to the jurors’, the introduction of real evidence can also have an emotional impact. When the jurors’ see the torn clothing of the rape victim; or see the murder weapon: a blood stained knife; or the power saw without a safety guard; jurors experience a visceral reaction that has staying power. Real evidence produces images in the jurors’ minds that are not easy to deflect or dismiss.
Admissibility of Real/Physical Exhibits Requires Both Relevance and Authentication:
At the outset, it is important to remember that any exhibit to be admitted into evidence must be relevant. EC §350 states: “No evidence is admissible except relevant evidence.” Exhibits must also be “authenticated.” Authentication requires that the proponent of the evidence show that the evidence is genuine, i.e. it is what it purports to be. These rules apply to real/physical evidence. People v. Trujillo, 32 Cal. 2d 105, 115 (1948).
Laying a Foundation for Real/Physical Evidence:
The process by which the proponent of the evidence shows that the real/physical evidence is genuine is called “laying a foundation.” I will illustrate laying a foundation with a hypothetical fact situation. A defendant robs a convenience store with a handgun. The robbery is captured on videotape. The clerk is able to give a generic description of the robber but a very specific description of the handgun used in the crime. When the defendant is arrested shortly after the robbery, the arresting officer discovers a handgun in the defendant’s waistband that matches the description given by the clerk and shown on video. At trial, the prosecution calls the arresting officer in order to lay a foundation for the admission of the gun used during the robbery.
After marking the gun as an exhibit, showing the gun to defense counsel, and asking permission of the court to approach the witness, the prosecutor positions herself near the witness stand, without blocking the view of any of the jurors, and asks the following four questions to lay the appropriate foundation for admission of the gun.
The Four Foundational Questions for Admission of Real/Physical Evidence:
Prosecutor: Officer Clark, I am now showing you a weapon that has been marked as Court’s Exhibit #6.
Question #1: Do you recognize it?
Question #2: What is it?
Clark: It is a 9mm semi-automatic handgun that I removed from the defendant’s waistband at the time of his arrest.
Question #3: How do you recognize it?
Clark: I recognize it because the gun was distinctive. It had a black matte finish with a mother of pearl grip. I also recorded the serial number of the gun in my report and it is the same serial number on this gun. I also attached an evidence impound tag which is still on the gun and that number matches the impound number in my report as well.
Question #4: Is this gun in the same or substantially the same condition as when you removed it from the defendant’s waistband at the time of his arrest.
Note how the last question, “Is the exhibit in the same or substantially same condition . . .” is different from the last question in the foundation for demonstrative evidence: “Does the exhibit truly and accurately depict . . .” (See, Exhibits: Admission of Demonstrative Evidence by Hon. Robert Trentacosta, published at www.sdinnofcourt.com.) The slight variation between those two final questions highlights the main difference between laying the foundation for demonstrative evidence and laying the foundation for real or physical evidence.
Once the foundation is established, the prosecution may move the court to admit the gun into evidence by saying:
Prosecutor: “Your Honor, the People move to admit Court’s Exhibit #6 into evidence.”
The Court will inquire whether the defense has any objection to admission of the gun. If none, the exhibit will be received. If the opposition objects (a common objection is “lack of foundation”) the court will rule on the objection. The four questions do not preclude additional questions to further amplify the importance of the gun, but the four questions are foundational for admissibility. Without them, the evidence is objectionable and will not be admitted.
Establishing a Chain of Custody:
In the above hypothetical, the object (the actual gun used in the robbery) was distinctive and easily authenticated by the officer’s observations and handling of the evidence. However, there will be occasions where the object is more generic and fungible (e.g. drugs, bullets, car parts) and must be authenticated using a “chain of custody” analysis. The phrase “chain of custody” is used to show that the physical object was in continuous and exclusive possession of a person or persons (e.g., the proponent) and therefor the authenticity of the object was safeguarded. That is to say, what is being presented to the court is the authentic item of evidence. While chain of custody is often thought to apply only to criminal cases, it applies to civil matters too, as the necessity for authentication also applies to evidence in civil cases. A typical example would include product liability cases where the plaintiff has the burden of showing the alleged defective product is the actual item involved in causing plaintiff’s injury.
I will illustrate the concept of chain of custody with a hypothetical. In this case, the defendant was arrested for committing a theft. At the search incident to his arrest, the arresting officer found a bulging baggie of white powder, consistent with methamphetamine, in the defendant’s jacket pocket. The officer conducted a field test of the powder that was presumptive for methamphetamine. He then placed the powder in an evidence bag, sealed the bag and impounded the evidence with a numbered evidence tag. Later, the bag was retrieved from impound and examined by a certified lab technician who recorded the evidence impound number and conducted a forensic analysis of the powder. The analysis revealed the powder was 4.2 grams of methamphetamine. The technician then sealed and initialed the bag and returned the evidence to the impound room where it remained until retrieved by the arresting officer on the morning of trial.
The law requires that the proponent of the evidence demonstrate with reasonable certainty that the evidence was not altered. People v. Lucas, 12 Cal. 4th 415, 444 (1996). As the California Supreme Court stated in Lucas:
“The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence… Conversely, when there is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains to go to its weight [Citations omitted]” Id at 444.
In our hypothetical, such proof would require that the prosecution show through the testimony of the officer and lab technician that protocol was followed to demonstrate with reasonable certainty that the evidence was not altered and is the authentic white powder taken from the defendant. The examination of the police officer would include the following foundational questions:
Prosecutor: “Officer, I am now showing you what has been marked as Court’s Exhibit #8.”
Question #1: Do you recognize it?
Question #2: What is it?
Officer: A baggie of a white powdery substance.
Question #3: How do you recognize it?
Officer: As I stated earlier, when I arrested the defendant, I searched him incident to the arrest. In his right jacket pocket I felt a lump and retrieved a plastic baggie containing white powder. I field tested the white powder and it was presumptive positive for methamphetamine. I placed the baggie containing the powder in an evidence envelope, sealed the envelope, recorded an impound number, and placed the evidence in our evidence impound facility. The number on this baggie is the same as the impound number on my report and the baggie and powder also resemble the item I removed from the defendant’s pocket.
Question #4: Is Court’s Exhibit #8 in the same or substantially the same condition as when you removed the item from the defendant’s jacket on July 5th?
The prosecution would continue to show the chain of custody by calling the lab technician and asking similar questions to verify authenticity. Once the lab technician has testified, the prosecution would move the item into evidence. (Note, most courts will not allow the actual illicit drugs to be sent to the jury room during deliberations. A photograph or lab report would serve as a substitute. However, the jurors have seen the actual baggie in court and that image will be foremost in their minds).
Real/Physical evidence is powerful and persuasive to jurors. Seeing the actual object that is the subject of the case provides a mental image for jurors that is hard to deflect or dismiss. Make sure you practice laying foundations until the questioning becomes familiar and comfortable. Most importantly, after laying the foundation, make sure you move the exhibit into evidence.